Defendant received a sentence of 60 years for murdering Nicole Koontz. The
trial court indicated that the 60 years were comprised of a 50-year presumptive
term and a ten-year enhancement. On Defendants first direct appeal, this court
remanded the case to the trial court for resentencing, finding that Defendant had
been sentenced under the wrong statute. The trial court resentenced Defendant to
60 years, this time comprised of a 40-year presumptive sentence and a 20-year
enhancement. Defendant appeals, claiming the increase in his sentence enhancement from ten
to 20 years was improper. Our analysis finds the revised sentence to
be proper.

We have jurisdiction over this direct appeal because the sentence exceeds 50 years.
Ind. Const. art. VII, § 4; Ind. Appellate Rule 4(A)(7).

Background

Defendant was convicted of Murder
See footnote and FeticideSee footnote for the July, 1994, murder of
Nicole Lynn Koontz and the 29-week-old fetus she was carrying. On February
13, 1996, Defendant was sentenced to at total of 60 years for
the murder conviction, with four years suspended, and four years for the feticide
conviction plus a four-year enhancement, with four years suspended. The trial court
ordered Defendant to serve the feticide sentence consecutive to the murder sentence.

This Court affirmed Defendants convictions on direct appeal, but remanded the case for
resentencing on the murder conviction because the trial court applied the wrong sentencing
statute.
See Hicks v. State, 690 N.E.2d 215, 224 (Ind. 1997).
The trial court had indicated that the sentence was comprised of a presumptive
50-year term plus a ten-year enhancement. In fact, the legislature had provided
that a 40-year presumptive term, subject to a 20-year enhancement, applied to
murders occurring between July 1, 1994 and May 5, 1995.
See footnote We concluded
that because the trial court had been careful and precise in weighing the
aggravating and mitigating factors when rendering the sentence, there was reason to believe
that its sentence might have been different had the 40-year presumptive sentence been
applied. Accordingly, we remanded for new sentencing.
See id.

On September 15, 1998, the trial court conducted a new sentencing hearing and
sentenced Defendant under the proper statute to 60 years comprised of a presumptive
term of 40 years for murder plus a 20-year enhancement.

Discussion

Defendant argues that the trial court erred when it resentenced him and increased
the enhancement period of his original sentence from ten to 20 years.
It is true that, upon resentencing a defendant, a sentencing court cannot impose
a more severe penalty than that originally imposed unless the court includes in
the record of the sentencing hearing a statement of the courts reasons for
selecting the sentence that it imposes which includes reliance upon identifiable conduct on
the part of the petitioner that occurred after the imposition of the original
sentence. Ind. Post-Conviction Rule 1(10)(b). But that is not what
happened in this case.

Here, the resentencing court incorporated by reference the same aggravators and
one mitigator recited by the trial court at the first sentencing hearing and
agreed that the aggravating circumstances substantially and totally outweigh[ed] the mitigating circumstance.
(R. at 35-36.) With more than adequate justification,
See footnote the court imposed upon
Defendant the maximum enhancement and maximum 60-year sentence in both i
nstances. The
resentencing court did not impose a more severe penalty or sentence upon Defendant
when it resentenced him; the term remained the same and the sentence does
not violate P-C.R. 1(10)(b).

Defendant also supports his claim by citing to North Carolina v. Pearce, 395
U.S. 711, (1969), overruled on other grounds by Alabama v. Smith, 490 U.S.
794 (1989), a case holding that whenever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for his doing
so must affirmatively appear. Id. at 726 (emphases added). This case
is inapplicable to Defendant for three reasons. First, as we concluded supra,
the resentencing court did not impose a more severe sentence upon Defendant.
Second, the harm that the Pearce case seeks to prevent upon resentencing is
not the imposition of greater sentences but the vindictiveness of a sentencing judge
for a defendants successful appeal of the courts holding. Alabama, 490 U.S.
at 799. Defendant does not present evidence to suggest that the court
increased his enhancement period from ten to 20 years because he successfully appealed
his original sentence.
See footnote Third,
Pearce and the Indiana cases Defendant cites all
involve situations where the defendant improperly received an increased total sentence upon retrial
or plea negotiations after an original conviction was set aside due to the
defendants successful challenge of a guilty plea. See Ogburn v. State, 549
N.E.2d 389, 391-92 (Ind. Ct. App. 1990) (original sentence of six years increased
to seven after the defendant was granted post-conviction relief, again pled guilty to
the same crimes, and was resentenced); Newville, 511 N.E.2d at 1049 (original sentence
of 40 years increased to 45 after retrial); Ballard v. State, 262 Ind.
482, 499-500, 318 N.E.2d 798, 809-10 (1974) (original sentence of two to five
years increased to 10 to 25 years after retrial). In the present
case, Defendant was not retried and he did not receive an increased sentence.

Footnote:
The 1994 General Assembly twice amended Ind. Code § 35-50-2-3. See
P.L. 164-1994 and P.L. 158-1994. Because the second amendment did not incorporate
the presumptive sentence changes of the first amendment and both amendments became effective
July 1, 1994, there was some confusion regarding the presumptive sentence for murders
committed between July 1, 1994, and May 5, 1995. This Court resolved
the problem in Smith v. State, 675 N.E.2d 693 (Ind. 1996).
Footnote:
In general, the legislature has prescribed standard sentences for each crime, allowing
the sentencing court limited discretion to enhance each sentence to reflect aggravating circumstances
or reduce the sentence to reflect mitigating circumstances. When the trial court
imposes a sentence other than the presumptive sentence, this Court will examine the
record to insure that the court explained its reasons for selecting the sentence
it imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing
Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)), rehg denied. The
trial courts statement of reasons must include the following components: (1) identification of
all significant aggravating and mitigating circumstances; (2) the specific facts and reasons that
lead the court to find the existence of each such circumstance; and (3)
an articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and
balanced in determining the sentence. Mitchem v. State, 685 N.E.2d 671, 678
(Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).

Footnote:
There is no presumption of vindictiveness even in cases where the court
increases a defendants sentence over that of his or her original sentence.
See Alabama, 490 U.S. at 799. The defendant must affirmatively show a
reasonable likelihood that his or her sentence was increased due to actual vindictiveness
on the part of the sentencer. Id.